2012
OPEN MEETING LAW
and Legislative
Amendments
Presented by
CATHERINE CORTEZ MASTO
Nevada Attorney General
Spring, 2012
Complaints for Years: 2000 -2009
OML COMPLIANTS
80
70
60
# OF COMPLAINTS
50
40
30
20
10
0
2000
2001
2002
2003
2004
2005
YEAR
2006
2007
2008
2009
Legislative Declaration Of Intent
All public bodies exist to aid in the conduct
of the people’s business. It is the intent
of the law that their actions be taken
openly and that their deliberations be
conducted openly. NRS 241.010.
2011 Legislative OML Acts
AB 59 and AB 257
► Handout:
► Seven
major amendments to the OML from AB 59;
► One very big change to public comment from AB
257.
► All these changes are discussed going forward and
appear in this .ppt in future slides
AB 257: Public comment Amendment
►
There’s now a choice for public bodies:
1. Two p.c. periods, One before any action item has
been considered, and another period of p.c. before
adjournment.
2. Or. P.c. must be heard before a public body takes
action on any action item but after it has discussed
the matter. And the public body must allow one
more period of p.c. before adjournment.
Word Play:
“Deliberation” Or “Discussion”
Why does it matter?
AB 257 amended Public comment requirements;
► So what does “discuss” mean when AB 257 states
that public comment must come after the public
body “discusses” the action item but before it
takes action?
► Do we consult the dictionaries?
► Nevada Supreme Ct.: “…it is the collective
discussion of an issue with the goal of reaching
a decision” that constitutes “deliberation.”
AB 59; important new agenda notice
requirements
Section 5, AB 59: Public body must state on
agenda that:
► Action
items must be “for possible action,”
► items
may be taken out of order: and/or
► Items
may be combined removed at any time.
► Most
importantly: public comment restrictions
must appear on the agenda.
AB 59, an exception to notice
requirement in NRS 241.033
A public body need not notice an applicant for
employment. This exception only applies
when and where the public body is the
appointing authority and the employee will
serve at the pleasure of the public body.
OPENNESS IS THE NORM,
NOT THE EXCEPTION;
The OML is:
“…for the public benefit and should be
liberally construed and broadly
interpreted to promote openness in
government.”
Dewey v. Redevelopment Agency of City of
Reno, 119 Nev. 87, 94 (2003)
…But, the Dewey Court also said:
► OML
does not prohibit every private discussion of
a public issue by members of public body or even
forbid lobbying for votes, but;
► …a quorum must not be involved.
► see: McKay v. Bd of County Commissioners, (103
Nev. 490 (1987)) members of public bodies may
discuss matters with colleagues, but the “OML only
prohibits collective deliberations or actions where
a quorum is present.”
Critical Definitions to understand the OML and
public meetings.
• Deliberations are defined in the manual at section 5.01: “to
examine, weigh and reflect upon the reasons for or against a choice
[before the public body] i.e. “collective discussion, acquisition and
exchange of facts preliminary to decision.”
• Action, or voting or decision:
See Manual section 5.01
• includes promise or commitment;
•But no secret ballots or secret promises
• Action occurs when a vote is taken by a majority of the
members present during a meeting of a public body
AG’s Open Meeting Law Manual
(new edition to be published March 2012)
► Statutory
provisions
► Explanation of requirements
► Examples
► Compliance checklists
► Forms
► Available on our website at
www.ag.state.nv.us or through your
legal Counsel
Remedies if Violation occurs
► Void
action; and/or seek
injunctive relief;
Corrective Action: AG’s OML
Manual, section 11.
► Private Lawsuits: NRS 241.037(2)
► Criminal Misdemeanor: NRS
241.040
► Civil monetary fines (NRS
241.0395)
► All of these remedies are now
supported by subpoena authority!!
(NRS 241.039).
►
Subpoena Authority: NRS 241.039
►
►
AG may issue subpoenas for the production of “relevant
documents, records or materials” in any OML
investigation…
Willful failure to comply may result in prosecution for
misdemeanor.
PENALTY For OML Violation
► AB 59 section 7, Final requirements:
(AB 59 as enrolled)
 Violator must have knowledge of violation …,
 He/she must have participated in action which
violated the OML.
 Fine: up to $500.00
 1 year limitations period for bringing an action.
 This cause of action belongs solely to the
Attorney General.
How to avoid Violation
► Enforcement
against a member of a public
body based on “participation” may only
occur when the member makes a
commitment, promise, or casts an
affirmative vote to take action on a matter
under the public body’s jurisdiction or
control when the member knew his/her
commitment, promise, or vote was taken in
violation of the OML.
More about how to avoid violation
► The
civil penalty amendment requires that a public
body take action in order for the civil penalty to be
potentially applicable. “Action” is defined in NRS
241.015(1) as an affirmative act; mere silence or
inaction by members is not sufficient to rise to the
level requiring enforcement.
►
This office would not seek to punish individual
members who attempt to comply with the OML,
only those that actually violate it.
…Yes, AB 59 CHANGED THE
DEFINITION OF PUBLIC BODY
► Manner
of creation – not function;
► Blue Ribbon Commissions?
► What is an entity subject to the OML?
► No intention to ensnare staff;
What Is A Public Body?
Does the Open Meeting Law Apply?
► It must still be collegial!! (from the Manual)
► “public body” must still be an administrative,
legislative, advisory, or executive body of the
state or local government. (from the statute)
► And, the public body must expend or disburse tax
revenue, or it:
► Advises or makes recommendations to a public
body that is supported by tax revenue.
► AB 59 did not tamper with these requirements…
This is how the definition changed.
It’s a public body …if
... the
administrative, advisory, executive, or
,
legislative body is created by:.
►
(1) The Constitution of this State;
►
(2) Any statute of this State;
►
(3) A city charter and any city ordinance which
has been filed or recorded as required by the
applicable law;
►
(4) The Nevada Administrative Code;
►
(5) A resolution or other formal designation by
such a body created by a statute of this State or an
ordinance of a local government;
►
(6) An executive order issued by the Governor;
or
►
(7) A resolution or an action by the governing
body of a political subdivision of this State;
►
Governor appointed Blue Ribbon
Commissions are now public bodies
►
►
►
►
Any board, commission or committee consisting of
at least two persons appointed by:
(1) The Governor or a public officer who is
under the direction of the Governor, if the board,
commission or committee has at least two members
who are not employees of the Executive
Department of the State Government;
(2) An entity in the Executive Department of the
State Government consisting of members appointed
by the Governor, or
(3) A public officer who is under the direction of
an agency or other entity in the Executive
Department of the State Government
NRS 241.0395
(AB 59 section 2)
New important administrative requirement
public body must publish Attorney General’s opinion
which found violation the OML on its next agenda.
► Findings of Fact and conclusions of law;
► Next agenda item to acknowledge the opinion.;
► AG’s opinion must be included in supporting material;
► Discussion agenda item is not an admission of
wrongdoing for purpose of civil or criminal action.
Public Body Meetings
Nevada: Quorum State
► There
still must be quorum of the members
of a public body present at a meeting for
OML to apply!
► Quorum: a simple majority of the members
of the public body or another proportion
established by law.
Meeting Basics: two components
► Deliberations,
“to examine, weigh and reflect
upon the reasons for or against a choice [before
the public body] i.e. “collective discussion,
acquisition and exchange of facts preliminary to
decision.”
► Action, or voting
► includes promise
or decision:
or commitment;
 But no secret ballots or secret promises
 Action occurs when a vote is taken by a majority of the
members present during a meeting of a public body
Committees are Still public bodies,
despite new definition
► Public
Body still includes committees and
subcommittees. NRS 241.015(3).
Committee’s legal status depends on parent
body’s legal status.
► Agency staff? Not usually subject to OML
► Non-profit corp? No, See OMLO 2001-17
► Members elect of public bodies? Yes
► Specific examples: See OML manual
sec.3.07
What is a Meeting?
Quorum?
Why is this important?
► Meeting:
The gathering of members of a
public body at which a quorum is present
to deliberate toward a decision or to take
action on any matter over which the public
body has supervision, control, jurisdiction or
advisory power. NRS 241.015(2)
More about Quorum
► NRS
241.015(4): Quorum means a simple
majority of the “constituent membership” or a
public body or another proportion established by
law.
► “Constituent” (dictionary definition) means: one
who has been given authority to act for another,
but vacant positions cannot act, only members can
act.
► Quorum: What about elected bodies?
Public Meeting Basic rules
Stick to the Agenda: Members and/or counsel
must prevent public body from wandering to
related topics;
Minutes must be kept and at minimum must reflect:
• date, time and place of meeting;
• members who were present and members who were
absent;
• substance of all matters proposed, discussed or
decided;
• substance of remarks made by any member of the
general public who addresses the body if he requests
that the minutes reflect his remarks or a copy of
prepared written remarks.
Public Meeting Basic Rule
“Clear and Complete” rule
NRS 241.020(2)(c)(1)
► Cornerstone
of OML
► Nevada S.Ct.: Sandoval v. Bd. Of Regents, 119
Nev. 148 (2003);
► Rejected the so-called “germane” standard.
► Agenda topics must be specific to alert the public
to topics that will be discussed.
Meeting Basics under the new AB 59
and 257 requirements
Public Comment: Now there’s a
Choice! AB 257
• Either two periods of public comment; … Or
public comment during every action item ,but
before action by the public body plus one
period of general public comment. [more on
this later]
• Reasonable rules and regulations that ensure
orderly conduct of a public meeting and ensure
orderly behavior on the part of those persons
attending the meeting must be adopted by a
public body and appear on the agenda.
OML Exceptions to open meeting
Public body may hold closed meeting to:
(a) Consider the character, alleged misconduct,
professional competence, or physical or mental
health of a person.
(b) Prepare, revise, administer or grade examinations
that are conducted by or on behalf of the public body.
(c) Consider an appeal by a person of the results of an
examination that was conducted by or on behalf of the
public body, except that any action on the appeal must be
taken in an open meeting and the identity of the appellant
must remain confidential.
Other OML Statutory Exemptions
Statutory Exemptions: Manual sec.4.02
► Judicial proceedings except quasi-judicial
proceedings: AB 59 sec.1.5
► Legislature;
► Ethics Commission;
► Labor negotiations: NRS 288
► School board expulsion hearings;
► And many others.
OML exemptions v. exceptions
Section 4.01 of the OML Manual illustrates
distinction between “exemption” and
“exception”;
Exemption applies to all entity’s
proceedings;
Exception applies only to certain entity
proceedings, not all of them.
AB 59 overturned Nv. S.Ct.
Recently created OML Exemption
for “Quasi-judicial” Proceedings:
Witherow v. State, Bd of Parole Commissioners, 123 Nev 305 (2007)
•
•
•
Nevada State Parole Board.
quasi- judicial proceedings had been
deemed sufficiently akin to judicial
proceedings to render them exempt.
What are elements of quasi-judicial?
Elements Of Quasi-judicial
Proceeding
•
Minimum requirements to qualify as quasijudicial proceeding:
1) evidentiary hearing;
2) cross examination of witnesses;
3) written decision by public body;
4) right of appeal to higher authority.
1st Amendment: public comment Issues;
Currently the OML authorizes a public body
to:
► restrict
public speakers to the subjects within its
control and jurisdiction;
► limit public comment if the “speech becomes
irrelevant or repetitious.”
► apply reasonable time limitations,
► And limit caustic personal attacks.
► But a public body may not limit public
comment based disagreement with
“viewpoint” of the speaker.
► OMLO 2001-22; AG File No. 00-047
Additional public comment issues
Does the OML require “meaningful” public
comment? (Recent decision in 8th J.D)
► Any limitation should be clearly articulated on
the public body’s agenda;
► Identify public body practices which
discourage public comment?
► Chairperson’s discretion to allow more time
or limit an individual’s time.
►
What about definition of …
“Committee, sub-committee or other
subsidiary thereof…” NRS 241.015(3)
Current Attorney General interpretation of NRS
241.015(3) mandate that the legal status of the
parent body applies to it’s “committee,
subcommittee or any subsidiary thereof”
:
Committee or no committee:
► AG’s
Manual states: “…to the extent
that a group is appointed by a public
body and is given the task of making
decisions for or recommendations to the
public body, the group would be
governed by the Open Meeting Law.”
Are Serial Briefings a Meeting?
► No!
In Dewey 119 Nev. At 94, 64 P. 3d at 1075, the
Nevada Supreme Court stated that private briefings
among staff of a public body and a non-quorum of
members of a public body is not a meeting for purposes
of the Open Meeting Law, and such a meeting is not
prohibited by law. See §5.08 supra for a further
discussion of Dewey.
► But stay away from “serial quorum” or “walking
quorum” or “constructive quorum. All terms are
synonymous.
Serial, Walking or
Constructive Quorum
It’s a Meeting if members participate in a series of
gatherings of members of a public body at which:
• less that a quorum is present at any individual
gathering
• the members of the public body attending one of
more of the gatherings collectively constitute a
quorum, and
• the series of gatherings was held with the specific
intent to avoid the provisions of this chapter.
“Serial, walking or constructive” meeting
caused by communications among
members!!
Electronic Communications such as telephone,
fax or email, may not be used to circumvent the
spirit or letter of the Open Meeting Law in order
to discuss or act upon a matter over which the
public body has supervision, control,
jurisdiction, or advisory powers. Del Papa v
Board of Regents of the CCSN, 114.
Nev.388,400 (1998).
Appointment Process for
an Appointed public officer,
or one who serves at the pleasure of the
public body
► NRS
241.031; and NRS 241.030(4)(e)
► A continuing source of confusion and
controversy;
► 1989 S.Ct case: “all consideration, deliberation,
discussion and selection” must be done in
public.
► So, What does this mean?
Public Officer
Appointment process
► The
Nevada Supreme Court explicitly stated that
the OML applies only to an appointment process
conducted by a public body. NRS 241.031;
► Public officer is defined in NRS 281.005 to
mean a person elected or appointed to a position
which: (a) Is established by the Constitution or a
statute of this State, or by a charter or ordinance
of a political subdivision of this State; and (b)
Involves the continuous exercise, as part of the
regular and permanent administration of the
government, of a public power, trust or duty.”
Exception to Open Public Meeting:
Closed Meeting
► Closed
meeting under NRS 241 may only be held
to consider:
 Character, alleged misconduct, professional
competence or physical or mental health of a
person; or
 Prepare, review, or grade examinations
administered by the public body; or
 Consider the appeal by a person of the results
of an examination administered by the public
body.
Notice Provisions prior to
Closed Meeting
Notice to Individuals: NRS 241.033:
Written notice to persons must be:
•Delivered at least 5 working days prior to the closed
meeting,
•Or sent certified mail at least 21 working days prior
to the meeting to last known address of the individual,
and it must include the time and place of the meeting.
Notice Provisions for Closed Meetings
(cont’d)
Must include a list of general topics concerning the person
to be discussed during the closed meeting, and it must
Include a statement of the rights of the individual to
counsel during the meeting and the right to call
witnesses and offer evidence relevant to the issues.
The notice may include an informational (NRS
241.033(2)(b), but it:
Notice to Individuals pursuant to NRS 241.034
A CLOSED MEETING MAY NOT BE
HELD IF:
•A public body seeks:
 to discuss the appointment of any person to a public
office or as a member of a public body;
to consider the character, alleged misconduct,
professional competence, or physical or mental health
of an elected member of a public body;
to conduct attorney-client communications, unless
specifically authorized by statute; these meetings are
now non-meetings. See NRS 241.015(2)(b)
to discuss indebtedness
Closed Meeting:
Appearance on the Agenda
Closed Meeting:
• A motion must be made to go into closed
session and the motion must specify the
business to be conducted during the closed
session. Only the business identified in the
motion may be discussed. See Sample Form
3.
• No action may be taken in closed session,
including forming a consensus or
recommendation. Section 9.04, OML
Manual
AG’s investigation procedure
…is based on NRS 241.037:
“Any suit brought against a public body … to require
compliance with the provisions of this chapter
must be commenced within 120 days after the
action objected to was taken by that public body
in violation of this chapter. Any such suit brought
to have an action declared void must be
commenced within 60 days after the action
objected to was taken.”
AG Manual policy:
The Attorney General’s policy for enforcement of Open
Meeting Law complaints is:
►
►
►
►
Pursuant to prosecutorial discretion, she may choose not to prosecute
an Open Meeting matter prior to the running of the 120-day statute of
limitations.
The AG will not investigate or act upon a complaint alleging an Open
Meeting Law violation received after the 120-day statute of limitations.
The Attorney General will not issue an Open Meeting Law Opinion
pursuant to its prosecutorial discretion after the 120-day statute of
limitations has expired.
A.G.’s Manual Section 11.07
Corrective Action: (Cure)
► Currently,
the NRS does not provide a “safe
harbor” to public bodies that take corrective action
to cure a defect in their public meeting, but:
► The AG’s manual encourages corrective action to
avoid civil suit. Manual at section 11.
► Now there are additional penalties in chapter 241
including criminal prosecution.
Cure OML violations immediately!
•
•
•
•
•
OMLO 2008-02
Well, maybe not immediately, but quickly!
Facts: quorum of public body met openly
during a break;
They were discussing a contentious
master plan and agenda item;
After break, one member publicly
admitted to violation and described the
nature of the conversation.
Cure OML violations immediately!
•
This public body’s admission coupled with description
of conversation effectively “cured” the violation.
•
Public body had taken no action following the recess in
the meeting; no promises or commitments had been
made.
•
The audio of the meeting revealed that subsequently,
there was vigorous discussion and an eventual
impasse, but the OML violation had been cured.
•
OML manual section 11.01 advises public bodies to
“stop, contain, and correct violations” as soon as
possible.
Cure OML violations immediately!
Cure could be used more frequently;
• Counsel should pay close attention to
proceedings during the open meeting;
• If necessary put the “cure” on the record;
Clear up any issue about whether promises
were made, and explicitly describe what was
discussed.
• Encourage the public body quorum which may
have violated OML to make statement
regarding his or her participation.
•
QUESTIONS OR COMMENTS?
GEORGE H. TAYLOR
Senior Deputy Attorney General
► Telephone
(775) 684-1230
► Fax (775) 684-1108
► 100 North Carson Street
Carson City, Nevada 89701
► www.ag.nv.gov